Lee v Minister for Correctional Services

• Jurisdiction: South Africa
• Citation: 2013 (1) SACR 213 (CC)

Lee v Minister for Correctional Services
2013 (1) SACR 213 (CC)

2013 (1) SACR p213

Citation	2013 (1) SACR 213 (CC)
Case No	20/12; [2012] ZACC 30
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J and Van Der Westhuizen J
Heard	August 28, 2012
Judgment	December 11, 2012
Counsel	M Donen SC (with M Bridgman and L Dzai) for the applicant.; I Jamie SC (with K Pillay and D Pillay) for the respondent.; A Hassim for the amici curiae.

Flynote : Sleutelwoorde

Prisons — Prisoner — Health — Prisoner contracting tuberculosis — Delictual liability of minister where prisoner contracting tuberculosis allegedly as result of prison authorities not taking reasonable steps to prevent its spread in prison — Whether factual causation established — In circumstances of C present case, where evidence showing appellant's risk of contracting TB would have been reduced had adequate prison TB-management been maintained, factual causation established.

Headnote : Kopnota

The appellant had sued the minister for damages arising from his having D contracted tuberculosis (TB) while incarcerated. The high court's decision in the appellant's favour was overturned on appeal, the Supreme Court of Appeal finding that, absent proof that a reasonably adequate prison TB-management system would have eliminated the risk of infection, factual causation had not been established. In an application for leave to appeal and an appeal against that decision, the Constitutional Court

Held, that our existing law did not hitherto require, as an inflexible rule, the use E of the substitution of notional hypothetical lawful conduct for unlawful conduct in the application of the but-for test for factual causation. There was thus nothing in our law that prevented approaching the question of causation simply by asking whether the factual conditions of (the appellant's) incarceration were a more probable cause of his tuberculosis than would have been the case had he not been incarcerated in those conditions. F A court ultimately had to make a finding as to whether causation was established on a balance of probabilities on the facts of each specific case. It would be enough to satisfy probable factual causation where the evidence established that the plaintiff had found himself in the kind of situation where the risk of contagion (with tuberculosis) would have been reduced by (the prison authority's) proper systemic measures. In the circumstances, G

2013 (1) SACR p214

A there was a probable chain of causation between the negligent omissions by the responsible authorities and (the appellant's) infection. (Paragraphs [50] at 235g, [55] at 237c, [60] at 238f, [71] at 242c and [73] at 242f–g.)

Held, further, that even if one were to accept that the substitution approach was better suited to factual causation, there was no requirement that a plaintiff had to adduce further evidence to prove, on a balance of probabilities, what B the lawful, non-negligent conduct of the defendant should have been. All that was required was 'the substitution of a hypothetical course of lawful conduct and the posing of the question as to whether, upon such a hypothesis, the plaintiff's loss would have ensued or not'. Postulating hypothetical lawful, non-negligent conduct on the part of a defendant was thus a mental exercise in order to evaluate whether probable factual C causation had been shown on the evidence presented to court. (Paragraphs [56]–[57] at 237d–g and [75] at 243c.) Leave to appeal granted and appeal upheld.

Cases cited

Southern Africa D

Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) 8A 824 (A): referred to

Betlane v Shelly Court CC 2011 (1) SA 388 (CC) (2011 (3) BCLR 264; [2010] ZACC 23): referred to

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2002 (1) SACR 79 (CC) (2001 (4) SA 938; 2001 (10) BCLR 995; [2001] ZACC 22): E applied

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) (2012 (3) BCLR 219; [2011] ZACC 30): dictum in para F [63] applied

F v Minister of Safety and Security and Others 2012 (1) SA 536 (CC) (2012 (3) BCLR 244; [2011] ZACC 37): referred to

In re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 713 (CC) (2002 (10) BCLR 1023; [2002] ZACC 13): referred to

International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A): dicta at 700F – H and 701F – G applied G

Kakamas Bestuursraad v Louw 1960 (2) SA 202 (A): dictum at 220B – C applied

Kruger v Coetzee 1966 (2) SA 428 (A): referred to

Lee v Minister of Correctional Services 2011 (2) SACR 603 (WCC) (2011 (6) SA 564): H confirmed

Minister of Correctional Services v Lee 2012 (1) SACR 492 (SCA) (2012 (3) SA 617; [2012] ZASCA 23): reversed on appeal

Minister of Finance and Others v Gore NO 2007 (1) SA 111 (SCA) ([2007] 1 All SA 309): dictum in para [33] applied

Minister of Justice v Hofmeyr 1993 (3) SA 131 (A): referred to

Minister of Police v Skosana 1977 (1) SA 31 (A): referred to I

Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) (2004 (2) BCLR 133; [2003] 4 All SA 565): dictum in para [59] applied

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741): dictum in para [20] applied

Minister van Polisie v Ewels 1975 (3) SA 590 (A): considered J

2013 (1) SACR p215

Nyathi v MEC for Department of Health, Gauteng and Another 2008 (5) A SA 94 (CC) (2008 (9) BCLR 865; [2008] ZACC 8): dictum in para [80] applied

Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA) (2001 (8) BCLR 779): compared

Phillips and Others v National Director of Public Prosecutions 2006 (1) SACR 78 (CC) B (2006 (1) SA 505; 2006 (2) BCLR 274; [2005] ZACC 15): referred to

Prince v President, Cape Law Society, and Others 2001 (1) SACR 217 (CC) (2001 (2) SA 388; 2001 (2) BCLR 133; [2000] ZACC 28): referred to

Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC) (2005 (4) BCLR 301; [2004] ZACC 20): referred to C

S v Shaik and Others 2008 (1) SACR 1 (CC) (2008 (2) SA 208; 2007 (12) BCLR 1360; [2007] ZACC 19): referred to

S v Van As en 'n Ander 1967 (4) SA 594 (A): compared

Satchwell v President of the Republic of South Africa and Another 2003 (4) SA 266 (CC) (2004 (1) BCLR 1; [2003] ZACC 2): referred to D

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) ((2007) 28 ILJ 2405; 2008 (2) BCLR 158; [2007] 12 BLLR 1097; [2007] ZACC 22): referred to

Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) SA 888 (A): dictum at 914F – 915G and 917H – 918A applied

Van der Spuy v General Council of the Bar of South Africa (Minister of Justice E and Constitutional Development, Advocates for Transformation and Law Society of South Africa Intervening) 2002 (5) SA 392 (CC) (2002 (10) BCLR 1092; [2002] ZACC 17): referred to.

England

Barker v Corus UK Ltd; Murray v British Shipbuilders (Hydrodynamics) Ltd and Others; Patterson v Smiths Dock Ltd and Another [2006] UKHL 20 ([2006] 2 WLR 1027): compared

Fairchild v Glenhaven Funeral Services Ltd and Others; Fox v Spousal (Midlands) Ltd; Matthews v Associated Portland Cement Manufacturers (1978) Ltd and Others [2002] UKHL 22 ([2003] 1 AC 32; [2002] 3 All ER 305): compared G

McGhee v National Coal Board [1973] 1 WLR 1 ([1972] 3 All ER 1008 (HL)): compared

Sanderson v Hull [2008] EWCA Civ 1211 (CA): compared

Smith, Hogg and Co Ltd v Black Sea and Baltic General Insurance Co Ltd 1940 AC 997: compared H

Wilsher v Essex Area Health Authority [1988] AC 1074 (HL) ([1988] 1 All ER 871; [1987] UKHL 11): compared.

New Zealand

Smith v Auckland Hospital Board [1965] NZLR 191: referred to. I

United States

Herskovits v Group Health Co 664 P 2d 474 (Wash 1983): compared

Rutherford v Owens-Illinois Inc 941 P 2d 1203 (Cal 1997): compared

Sindell v Abbott Laboratories et al 607 P 2d 924 (Cal 1980): compared

Summers v Tice et al 199 P 2d 1 (Cal 1948): compared. J

2013 (1) SACR p216

Case Information

A Application for leave to appeal and an appeal against a decision of the Supreme Court of Appeal.

M Donen SC (with M Bridgman and L Dzai) for the applicant.

I Jamie SC (with K Pillay and D Pillay) for the respondent.

A Hassim for the amici curiae.

Cur adv vult. B

Postea (December 11).

Judgment

Nkabinde J (Moseneke DCJ, Froneman J, Jafta J and Van der Westhuizen J concurring): C

Introduction

[1] Before this court is an application for leave to appeal against a decision of the Supreme Court of Appeal [1] overturning a D decision of the Western Cape High Court, Cape Town [2] (high court). The high court declared the respondent liable for the delictual damages suffered by the applicant as a result of contracting tuberculosis (TB) while in detention. Having rejected the applicant's claim on a narrow factual point on the application of the test for causation, the Supreme Court of Appeal E upheld the respondent's appeal and absolved her from liability.

[2] Primarily, the case concerns whether the applicant's detention and the systemic failure to take preventative and precautionary measures by the Correctional Services authorities caused the applicant to be infected F with TB while in detention. The complaint is that the unlawful detention and specific omissions violated the applicant's right to freedom and security of the person and the right to be detained under conditions consistent with human dignity, and to be provided with adequate accommodation, nutrition and medical treatment at state expense. [3] The G question is whether the causation aspect of the common-law test for...